Monday 15 December 2014

Supreme Court: Basic concept of tenant holding over and tenant at sufferance


 Under Section 111 of the TP Act, a lease of immovable property determines, inter alia, by efflux of the time limited. Section 116 envisages the effect of holding over and provides that "if a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106". Section 106 of the TP Act deals with duration of certain leases in the absence of written contract or local usage with which we are not concerned in this case since the appellant and the landlady are governed by the written lease. Since the landlady had not accepted or asserted to the appellant's continuance in possession, he cannot be treated under Section 116 to be a tenant holding over.
9. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Edn.) at page 633 the position of tenancy at sufferance has been stated thus : A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore , cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does riot create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus : The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression "holding over" is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical.

SUPREME COURT OF INDIA

R.V. BHUPAL PRASAD  Vs. STATE OF ANDHRA PRADESH 

DATE OF JUDGMENT11/08/1995
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)

CITATION:
 1996 AIR  140  1995 SCC  (5) 698

 JT 1995 (6)   258  1995 SCALE  (5)41
  Smt. Saleha  Begum, the  3rd respondent has demised her
property, namely,  Shaensha Mahal situated on Congress Road,
Governorpet, Vijayawada,  A.P. to the appellant for a period
of 20  years by lease deed  dated January  1, 1964  and  in
furtherance thereof,  the appellant  has  been running the
exhibition of  Cinematograph films  in the said theatre. The
lease, by  efflux of  twenty  years,  contracted  thereunder
expired on  December 31,  1983. When  the  appellant  sought
renewal of  the licence  granted  under  the  A.P.  Cinemas
(Regulation) Rules,  1970  (for short, `the  Rules'), the
landlady objected  to the  renewal. The licensing authority
and the appellate authority  had granted  licence but in a
write petition filed by  the landlady the  learned  single
judge held that the appellant is not in lawful possession of
the theatre  and that, therefore, the grant of renewal was
not justified in law. This was affirmed in W.A. Nos.1118 and
1183 of 1992 dated September 3, 1993. Thus these appeals by
special leave.
     Sri  U.R. Lalit, learned   senior  counsel  for the
appellant, contended  that in  1983,  the  Rules  have been
amended and  the pre-existing  Rule has been bifurcated into
initial grant  of licence  in  Rule  11(B)  and renewal  is
separately dealt with under Rule 12(B). Rule 11(B), sub-rule
(2) envisages  proof  of  lawful  possession  of  the  site,
building and the equipment, while Rule 12(B) expressly omits
to satisfy the requirement. The rule making authority having
had knowledge  of the  decisions rendered  by various courts
including this Court on  the insistence  of proof of lawful
possession  by the  licensee and  unlawful  or  litigious
possession disentitles the licensee  to have  renewal, rule
making authority had done away with the requirement of being
in lawful  possession at  the stage  of granting renewal. On
interpretation of  the rules, the  legislative  intendment
should be  given effect to. The  Full Bench  of the  Andhra
Pradesh High  Court in Smt. Y. Anasuya v. Government of A.P.
[1993 (1)  ALT 661  (F.B.)]  wrongly  interpreted  the rule
bringing the  requirement of  being in lawful possession at
the stage  of granting renewal. He  also further  contended
that the  appellant having  lawfully entered into possession
and having  remained in possession  during  the  subsisting
period of  lease and  after expiry  thereof, his  possession
also is juridical possession  until he is duly ejected by a
decree of  the Court.  His possession cannot be termed to be
unlawful nor  can he  be treated  as a rank trespasser. The
appellant is in long settled possession. The appellant is in
long settled  possession. The  object of  the  Rules  is  to
facilitate  the  exhibition  of   Cinematograph  films  to
entertain the  public. When  the  licensee  is in  settled
possession protected  by general  law, he continues to be in
lawful possession   till  he is   duly   ejected.   While
interpreting the  Rule, the  Court would  endeavour to give
effect to the juridical possession so long as he is not duly
ejected in due course of law. The Full Bench, therefore, was
not right  in its  conclusion. In support thereof, he placed
reliance on  the decision  of this  Court in  Lalu  Yeshwant
Singh v.  Rao Jagdish Singh & Ors. [(1968) 2 SCR 203] and in
Krishna Kishore Firm v. Govt. of A.P. & Ors. [(1990) Supp. 2
SCR 8 at 11]. He also cited in his support East India Hotels
Ltd. v. Syndicate Bank [(1992) Supp 2 SCC 29].
     Sri  K.   Ram  Kumar,  learned  counsel  appearing for
respondent No.3,  contended that under the conditions of the
lease, on  its expiry, the appellant had to deliver not only
the  vacant   possession  but  also  the  equipment  without
claiming any compensation. There is nothing to indicate that
the landlady  had acquiesced  in the appellant's continuance
in possession  of the theatre after the expiry of the lease.
In fact,  the landlady filed O.S.  No.538/85 on the file of
the Court  of the  Principal Subordinate Judge at Vijayawada
for eviction  of the  appellant from  the  demised  premises
which would  indicate that  the possession  of the appellant
was never  treated to  be lawful.  It is also contended that
the Full  Bench, while interpreting  the  Rule,  has  taken
notice is  to  be  renewed  it should be  subject  to the
willingness of the lessor.  When the lessor objected to the
grant of  the  licence on  the ground that  she  had not
acquiesced in  the possession  of  the licensee  under the
Rules, the  possession of the licensee of the theatre cannot
be considered  to be  lawful possession. Therefore, the High
Court was right in its conclusion that the possession of the
appellant is  not lawful  for grant  of the  renewal of the
licence.
     The respective  contentions give  rise to the question
whether the   possession  of the  appellant is   lawful
possession. Rule 11(B), sub-rule (2) envisages thus :
     "(2)  On  receipt of  the reports  and
     certificates referred  to in  clause (b)
     for sub-rule  (1) or,  if the  same have
     not   been   received   in    time   on
     consideration   of   the certificates
     referred to  in clause  (c) of Rule 11-A
     on merits, if the licensing authority is
     satisfied that   the  applicant  is  in
     lawful possession of the site, building
     and equipment  he shall, within ten days
     from the  date of receipt of  the above
     reports and certificates or the due date
     for the  receipt of  above reports  and
     certificates grant a license  in Form-B
     with  or without  adding   additional
     conditions thereto,  consistent with the
     provisions of  these rules,  as  he  may
     deem fit  in the  interest of the health
     and safety of the public;
 Provided  that   if  the  licensing
     authority is    satisfied   that  the
     provisions of  these rules have not been
     fulfilled and  or that, in the case of a
     temporary cinema building the provisions
     in Appendix-IV  are not fulfilled he may
     refuse to grant the licence applied for
     the communicate  to  the  applicant  the
     reasons for such refusal.
 Provided also that the  period  of
     validity of  a licence  shall so  far it
     may be  co-related with  the  period  of
     validity of    electrical   and fire
     certificate granted  in accordance with
     the provisions in Appendix-IV."
Rule 12 (B) (1) read thus:
     "Renwal of Licences to cinema buildings
     :- (1) within fifteen days of receipt of
     such    application,    the    licensing
     authority shall;
     (a)  If   the  application  is  not  in
     accordance with the rules, dispose it of
     in accordance  with clause (a) of sub-
     rule (1) of Rule 9(B).
     (b) If  the application is in order, the
     electrical and fire certificate is valid
     and if  the certificate  of longevity of
     the building  initially  issued  by  the
     concerned Executive  Engineer  (R&B)  is
     valid  for the  period  for  which  the
     renewal of licence is  applied for, the
     licence may  be renewed  for the  period
     applied for:
 Provided further  that, in  case of
     an application  for renewal of a licence
     (in  respect   of a   permanent  cinema
     building) which  is made three months in
     advance of the expiry of the licence, if
     the authorities concerned do not furnish
     their reports  and certificates in time,
     the  respective  certificates  shall  be
     deemed to have been renewed;
 Provided  that   if  the  licensing
     authority is    satisfied   that  the
     provisions of  these rules have not been
     fulfilled he  may refuse  to  grant  the
     renewal applied  for and  communicate to
     the  applicant   the  reasons  for such
     refusal;
 Provided further that the period of
     validity of    electrical   and fire
     certificate granted  in accordance with
     the provision in Appendix-VI."
     It is  true, as rightly pointed out by Shri U.R. Lalit,
that under  Rules 11  of the  unamended Rules, the right to
initial grant and  the   renewal  of  the  licence was
compendiously considered  as an integral scheme  in  single
Rule, which  was thereafter,  i.e. in  1983, amended  giving
separate headings  and consideration  for the  grant of the
licence and  grant of  renewal of  the licence. One of the
conditions for the grant  of licence  is that the applicant
shall satisfy  the licensing authority that the applicant is
in lawful  possession of  the site,  building and equipment.
When the  licensee sought  renewal of  the licence,  diverse
conditions prescribed  in Rule 12(B)  are  required  to  be
complied with. Application for renewal of  a licence for a
permanent cinema  building should  be made  three months  in
advance of  the  expiry  of  licence. If  the authorities
concerned do  not furnish  their reports and certificates in
time, the  respective certificates  shall be  deemed to have
been renewed  provided that  if the  licensing authority  is
satisfied that the provisions of these rules have not been
fulfilled he may refuse to grant the renewal applied for and
communicate to the applicant  the reasons for such-refusal.
The second  proviso  provides  clearly that  not  only the
conditions enumerated  in clauses  (a) and  (b) of  sub-rule
(1), but  also all  the provisions  of the  Rules should  be
satisfied for the grant of the renewal.
     For the  grant of the licence, one of the requirements
is that the applicant should have lawful possession of site,
building and  equipment. It  is true that the right to grant
licence and right to grant renewal are separately dealt with
by Rule 11(B) and  Rule 12(B) respectively. But  when Rule
11(B) and  Rule 12(B)  respectively. But when Rule 12(B)(1),
second proviso itself indicates that the licensing authority
should satisfy itself that  the licensee that satisfied all
the provisions of the rules, the  licensee should  satisfy
that he is in lawful possession when he seeks renewal.
     Section 105 of the Transfer of Property Act [for short,
`the TP Act'] defines "lease" of  immovable property as "a
transfer of  a right  to enjoy such property, made  for  a
certain time,  express or  implied,  or in  perpetuity,  in
consideration of  a price  paid or  promised, or  of money a
share of  crops, service  or any other thing of value, to be
rendered periodically  or  on  specified  occasions  to the
transfer by  the transferee,who accepts the transfer on such
terms". Therefore  the lessor of  immovable property  by
contract in  writing or otherwise can transfer his property
to the lessee to  enjoy such property. It may be made for a
certain time,  express or  implied,  or in  perpetuity,  in
consideration of  a price  or promised, or of money etc. and
the lessee accepts the transfer on such terms. Under Section
111 of the TP Act, a lease of immovable property determines,
inter alia,  by efflux of the time  limited. Section 116
envisages the effect of holding over and provides that "if a
lessee or  under-lessee of  property remains  in  possession
thereof after  the determination of the lease granted to the
lessee, and  the lessor or his legal representative accepts
rent from  the lessee  or under-lessee, or otherwise assents
to his continuing in possession, the lease is, in absence of
an agreement  to the contrary, renewed from year to year, or
from month  to month, according to the purpose for which the
property is  leased, as specified in  Section 106". Section
106 of the TP Act deals with the duration of certain leases
in the absence of written contract or local usage with which
we are not concerned  in this case since the appellant and
the landlady  are governed  by the  written lease. Since the
landlady had  not accepted  or asserted to the appellant's
continuance  in possession,  he  cannot  be  treated  under
Section 116 to be a tenant holding over.
     Tenant at sufferance is  one who comes into possession
of land by lawful title, but who holds it by wrong after the
termination of the term or expiry of the lease by efflux of
time. The  tenant  at  sufferance  is, therefore,  one who
wrongfully continues in possession after the extinction of a
lawful title.  There is little difference between him and a
trespasser. In Mulla's Transfer  of Property Act [7th End.]
at page 633, the position of tenancy at sufferance has been
stated thus:  A tenancy at sufferance is merely a fiction to
avoid continuance  in possession operating as a trespass. It
has been  described as the least  and lowest interest which
can subsist  in reality. It, therefore, cannot be created by
contract and arises only by implication of law when a person
who has been in possession under a lawful title continues in
possession after that title has been determined, without the
consent of the person entitled. A Tenancy at sufferance does
not create  the relationship of landlord and tenant. At page
769, it is stated  regarding the  right of a tenant holding
over thus:  The act  of holding over after the expiration of
the term  does not necessarily create a tenancy of any kind.
If  the  lessee   remaining   in   possession after the
determination of the term, the common law rule is that he is
a tenant  on sufferance.  The expression  "holding over"  is
used in the sense  of retaining  possession. A distinction
should be  drawn between  a tenant  continuing in possession
after the determination of the lease, without the consent of
the landlord  and a  tenant doing  so  with  the  landlord's
consent. The  former is called a tenant by sufferance in the
language of  the English law and the latter class of tenants
is called  a tenant  holding over  or a tenant at will. The
lessee holding over with  the consent of the lessor is in a
better position than a mere tenant at will. The tenancy on
sufferance is converted into a tenancy at will by the assent
of the landlord, but  the relationship of the landlord and
tenant is  not established  until  the rent  was  paid and
accepted. The  assent of  the landlord to the continuance of
the tenancy  after the determination of  the tenancy  would
create a  new tenancy. The possession of a  tenant who has
ceased to  be a tenant is protected by law. Although he may
not have  a  right  to continue  in  possession  after the
termination of the tenancy, his possession is
juridical.
     The question  then is  what  is  the  meaning  of the
expression `lawful  possession'. This was considered by this
Court in  a leading  decision on  the right to grant licence
under the  Cinematographic Act and Madras  Cinemas Rules in
M.C. Chockalingam  &  Ors.  v. V.  Manickavasagam  &  Ors.,
[(1974) 2  SCR 143  at 152].  Rule 13  of the  Madras  Rules
required the  licensee in  lawful possession,  when  he had
applied for  renewal after  the expiry of the lease of the
licensee. The Court observed thus:
     "Turning to  rule 13,  even in the first
     part if the applicant for the licence is
     the owner of the property  he  has  to
     produce before  the licensing  authority
     the necessary  records not only relating
     to his  ownership but also regarding his
     possession. It  is implicit,  that  the
     owner having a title to the property, if
     he can  satisfy the  licensing authority
     with regard to his possession also, will
     indeed  be  in   `lawful possession',
     although the  word `lawful'  is not used
     in the first part. It is in that context
     that the  word `possession'  is even not
     necessary to be qualified by `lawful' in
     the first part of rule 13. If, however,
     the applicant for the licence is not the
     owner,  there  is no  question  of  his
     showing title  to the  property and  the
     only  requirement of  the  law  is  to
     produce  to   the satisfaction  of  the
     authority documentary   evidence with
     regard to his lawful  possession of the
     property. The  word `lawful'. therefore,
     naturally assumes significance  in  the
     second  part   while  it  was  not even
     necessary in  the first  part. The fact
     that  after  expiry  of  the  lease  the
     tenant  will  be  able  to continue  in
     possession of  the property by resisting
     a suit  for eviction, does not establish
     a case   in  law slaw  to  answer  the
     requirement of  lawful possession of the
     property within  the meaning of rule 13.
     Lawful possession cannot be established
     without  the  concomitant existence  of
     lawful relationship between the landlord
     and the tenant. This relationship cannot
     be established  against the  consent  of
     the landlord unless, however, in view of
     a special  law, his  consent  becomes
     irrelevant.  Lawful  possession  is  not
     litigious possession  and must have some
     foundation in  a legal  right to possess
     the property  which  cannot  be  equated
     with  a   temporary  right  to  enforce
     recovery  of  the property  in  case  a
     person   is   wrongfully or   forcibly
     dispossessed from it. This Court in Lalu
     Yeshwant Singh's case (supra) had not to
     consider whether  judicial possession in
     that case was also lawful possession. We
     are clearly  of opinion  that  juridical
     possession is  possession protected  by
     law against  wrongful dispossession  but
     cannot per se always  be equated with
     lawful possession."
     This decision  has been  followed in  many  subsequent
decisions of  this Court.  In  Krishna Kishor Firm's case
(supra), this  Court has  considered the  controversy  in  a
slightly different scenario. The facts therein were that the
appellant-firm while running the Cinema Theatre on a licence
granted pursuant to a lease by the landlords, one of the co-
owners had  agreed to  sell his share of  the property and
another co-owner  also entered separately into a lease. The
question therein  was  whether the  possession was  lawful
possession under  the Rules.  Giving various  illustrations,
this Court  held that  the  lawful  possession means  legal
possession which  is also  rightful or at least  excusable.
Thus that  which is not stricto legalo may yet be lawful. It
should not   be  forbidden  by law.  In  fact "legal"  is
associated with provisions in the Act,  rules etc. whereas
"lawful" visualizes  all that is not illegal, against law or
even permissible.  "Lawful" is wider  in  connotation than
"legal".  Although   provisions in   Specific Relief Act
empowering a  person or tenant to  recover possession if he
has been  evicted forcibly by the landlord, may be juridical
and not lawful or  a tenant  holding over  is not in lawful
possession unless landlord agrees or acquiesces in expressly
or impliedly  but that does not  alter the  legal  position
about possession  of a person not  legal  yet not  without
interest. In considering the Chockalingam's case, this Court
made a distinction between  nature of the possession of the
lessee after the expiry of period of lease and the nature of
the possession of the lessee acquiesced in by the landlord.
In that context, it  was pointed out that the lessee before
expiry of  period of lease acquired lessor's entire interest
resulting in  drowning or  sinking of  inferior right into
superior right. That is a right one of merger into another.
It has been separately recognised by Section 111(d) of the
TP Act. Similarly, a tenant after expiry of period of lease
may be holding over  and the  lessor may  acquiesce in his
continuance, expressly or impliedly.  That is from conduct
into lawful.  The other may be where lessor may not agree to
renew the  lease nor  he may  acquiesce in  his continuance.
Such a lessee cannot  claim  any  right  or  interest. His
possession is  neither legal  nor lawful. Such was the ratio
of Chockalingam's case.
     In the  backdrop of the factual position, law laid down
by  this  Court in  Krishna  Kishore  Firm's  case  [supra]
requires to  be understood.  It is  seen  that one  of the
lessors had  entered into  an agreement of  sale  with the
lessee to  the extent of his share in the joint property and
some of the co-owners had also entered into a fresh lease to
the extent  of their  share in that property. The property
being joint and indivisible, in that backdrop this Court had
held that  the possession of the appellant therein cannot be
considered  to be   unlawful.  The ratio is   clearly
distinguishable. Decision  of this  Court in  Lalu  Yeshwant
Singh's case  [supra] also  renders little assistance to the
appellant. Therein,  the tenant had  committed default  in
payment of  rent. The  landlord instead of filing a suit for
ejectment of the tenant had taken law into his hands and had
the  tenant   forcibly ejected from  possession.  When  he
approached the Court, this Court settled the legal position
that  the   landlord  is  not  permitted  to  take  forcible
possession except in due process of law and they must obtain
such possession as they are entitled through court of law as
the law recognised. The  possession of a  tenant  who had
ceased to  be a tenant, after expiry or termination of the
lease, is  protected  by  law  until  he  is  duly  ejected.
Although he  may not  have a  legal  right  to continue  in
possession after the termination of the tenancy or after the
expiry of  the tenancy, his possession was  at  sufferance
recognised to  be juridical and that possession is protected
by Common law.
     Suppose a person trespasses  into Government  land and
remains in  unlawful possession,  whether he is liable to be
ejected under  the Public Premises Act. Since Government has
not recognised the right  of the  trespasser to  remain  in
possession of the Government land, the Government is free to
take action  as is  available under  law either under Public
Premises Act  or appropriate  law. But the Government cannot
forcibly  eject the  trespasser.  In  fact,  this  sort  of
controversy had arisen in  East  India  Hotels  Ltd. case
[supra]. Therein, the licensor, after the fire had broken in
the premises,  requested to  give possession  for  effecting
repairers and  the licensor  was alleged to have promised to
give back  possession to  the licensee. Since the possession
was not redelivered, the licensee approached the High Court
under Section  6  of  the  Specific  Relief  Act,  1963 for
possession. The High Court  granted decree  for  possession
until he  was duly  ejected. One  of us [K. Ramaswamy, J.]
considered the entire case law including the cases cited by
Sri Lalit  in the  context of  the power  of the Court under
section 6  of the  Specific Relief  Act to  grant decree for
possession for a licensee. It was held in para 44 that:
     "Law respects  possession even  if there
     is no  title to  support it.  No one  is
     permitted to take law in one's own hands
     and to  dispossess the  person in actual
     settled possession without due course of
     law. No  person can be allowed to become
     a judge  in his  own case. The object of
     s.6 is  to discourage  people to  act in
     self-help, however, good their title may
     be. The  licensee in possession for well
     over 15  years is in settled possession
     and is  entitled to remain in possession
     and is  entitled to remain in possession
     and make  use of  the premises  for  the
     purpose for  which it  was demised until
     he is  ejected in due course of law. The
     acquiescence of  the  landlord  in this
     context would be to the initial unlawful
     entry into possession and continuation
     thereafter but not to the continuance in
     possession of  the licensee  after  the
     expiry or termination of the  licence.
     That was what this Court appears to have
     meant in  the previous  decisions. Take
     for instance  that when  a licence  was
     granted for  a couple of years and after
     its expiry by efflux  of time,  or  on
     termination, if  the possession  of  the
     licensee, though  unlawful and unjust is
     not protected,  the aggressor  or mighty
     would trample upon the right of the weak
     and meek  and denial of relief under s.6
     would put a premium upon the aggression
     or treachery  or tricks.  No doubt long
     delay in disposal of cases due to docket
     explosion became  a ruse to unscrupulous
     litigant to  abuse the due course of law
     to protract  litigation  and  remain  in
     unjust   or   wrongful   possession   of
     property. Landlord  could be  suitably
     compensated  by  award  of damages.  It
     cannot, by any stretch  of imagination,
     be said that  a  person  in  settled
     possession,  though   unlawful,  is  not
     entitled to  the protection under s.6 of
     the Act.  Maintenance of  law and order
     and enthusing confidence in the efficacy
     of rule  of law  are condition precedent
     for orderly  society. Therefore,  giving
     primacy, legitimacy  or legality  to the
     conduct or acts of the landlord to take
     possession of the property in derogation
     of the  due  course  of  law  would  be
     deleterious to  rule of law and a pat on
     high-handedness or self-help."
     It was  held that so long as the licensee has not been
evicted in  execution of  the decree  lawfully obtained, his
possession under  s.6 of the Act as a licensee is protected.
Section 6  can be  availed of to recover possession until he
is lawfully dispossessed in due course of law.
     In view  of the settled position of law, the possession
of the appellant is as tenant at sufferance and is liable to
ejectment in  due course  of law.  But his possession is not
legal nor  lawful. In  other words,  his possession  of the
theatre is  unlawful or litigious possession. The appellant
may remain  in possession  until he is ejected in due course
in execution  of  the  decree  in  the suit  filed  by the
respondent.  His  possession  cannot  be  considered  to  be
settled possession.  He is  akin  to  a trespasser,  though
initially he had lawful entry.
     In this  behalf,  it  is  necessary  to  see  even the
contract under which he was put in possession.
     Para 22 & 23 of the contract reads thus:
     22. "That the  lessee  shall  quit  the
     scheduled properties  on expiry  of  the
     lease period  and deliver possession of
     the entire demised  properties  to  the
     Lessor including  furniture installed by
     the  Lessors   and other improvements,
     alterations, constructions
     reconstructions and  additions  effected
     by the  Lessees if any in good condition
     subject only  to the  changes caused  by
     reasonable   wear   and  tear  and
     irresistible force;  that in  default of
     so quitting  the premises, the  Lessees
     shall pay enhanced rent  and damages at
     the rate  of Rs.100/-per  day, till they
     are evicted  by the provisions of law by
     the Lessor.
     23. On  expiry of the lease period, the
     Lessees  should   sign   all   necessary
     applications and  papers and  co-operate
     to obtain transfer of  all the licences
     back  in  the  name  of  Lessor  or  her
     nominees  promptly and  also  send  all
     necessary statements  to the  officers
     concerned for  the purpose or otherwise,
     the Lessor gets every  right to get all
     the licences  transferred in  her name
     automatically  immediately  after  the
     expiry of the Lease period."
     A reading of these two covenants clearly manifests the
intention of  the parties that after the expiry of the lease
he is enjoined to deliver possession of the demised premises
to the landlady.
     After the expiry of  the lease,he is treated to be in
unlawful possession, since he is required to pay damages for
use and occupation at the rate of Rs.100/- per day till he
is evicted  in due  course of  law. Thereby it is clear that
his possession was not treated to  be juridical possession
was  not   treated  to be  juridical  possession  but only
unlawful.  He  is  required  to pay  damages  for  use and
occupation. Clause 23 indicates that on expiry of the lease,
the lessees  should  sign  all necessary  applications and
papers and  cooperate with  the lessor to obtain transfer of
all the licences. That would clearly indicate the intention,
namely, that  the appellant  shall remain in possession only
for the period of twenty years and thereafter his possession
becomes unlawful.
     The High  Court, therefore, was right in its conclusion
that the  possession  of  the  appellant  is  unlawful. The
learned Single Judge of the High Court [K. Ramaswamy, J., as
he then was] in  M. Kameswara Somayajulu vs. State of A.P.
[1989 (1)  APL] 82 (SN)] was not correct in his holding that
at the time of renewal, the licensee need not establish his
lawful possession  due to  omission in Rule 12(B) (1) which
was followed  by another  Division Bench. The Full Bench has
reconsidered the controversy. For different reasons given by
us, we think that  the conclusion reached by the Full Bench
is correct.
     The appeals  are dismissed.  No costs.  The respondents
are  entitled  to  withdraw  the  amount  deposited  by the
appellant pursuant  to the  interim  order  passed  by this
Court.





Print Page

No comments:

Post a Comment